The petitioner Kadir Bux has been arrested on a charge under Rules 42 and 49 of the Defence of Pakistan Rules. Although it is not stated either in the first information report or by the Assistant Advocate-General at the time of arguments as to which clause of Rule 42 is attracted in the cage. I am of the view that of the various clauses in Rule 42(6) which define --what is a "prejudicial act", the clauses which proximately or remotely can possibly apply in this case would be clauses (e) and (g) of the said-Rule. These clauses read as follows: "Prejudicial act" means any act which is intended or is likely---
(e) to bring into hatred or contempt, or to excite disaffection toward; the Government established by law in Pakistan;
(g) to promote feelings of enmity and hatred between different classes of citizens."
Contravention of Rule 42(6) of the Defence of Pakistan Rules is punishable under Rule 49 of the same Rules and the maximum sentence provided is imprisonment for a period of five years or fine or both.
2. Normally in the scheme of Code of Criminal Procedure whenever an offence is punishable upto five years; bail could be granted but Wee learned Assistant Advocate-General relied on Rule 210 of the said Rules, for the purposes of supporting an argument that this Court will have no power to grant bail unless it was satisfied that there are reasonable grounds for believing that the accused is not guilty of contravention of Rule 42. It would thus appear that in matter of grant of bail the scheme provided is the Defence of Pakistan Rules is different from the scheme provided under the normal law viz. The Criminal Procedure Code. However, there have been cases when inspite of such prohibition as is contained in Rule 210, the superior courts of this country including the Supreme Court have granted bail. I may only refer to the case of Begum Silvat Sher All v. The State. The car was numbered as Criminal Bail Application No. 408 of 1972. General Sher A.I was accused of contravention of Rule 42 and his application was heard by my Lord the Chief Justice who rejected the same. The matter was taken by way of special Leave to Appeal to the Supreme Court and their Lordships of the Supreme Court interpreted the scope of the powers the Court to grant bail in the matters falling within the ambit of Rule 210 of the Defence of Pakistan. Rules. Their Lordships of the Supreme Court in their order expressed themselves as follows:- .
"Section 210 on the other hand forbids the Court to grant bail unless 'the Court 'is satisfied that there are treasonable grounds for believing that he is not guilty of such contravention.' The word 'such contravention refer to a contravention of such rules or. Orders made thereunder as are notified by the Central Government. Admittedly the Central Government has issued a notification in respect of the provision in question in this case. I am not quite convinced that as a matter of pure theoretical construction the two provisions mean the same thing; I would, however, agree that in a case like the present which depends not upon anticipating the quality of evidence that has yet to come but upon the true meaning and effect of a statement reduced to writing the practical difference between the two might well be minimal or negligible. However one strong difference still would remain, Under section 497 bail is granted as a rule in non-bailable offences but is refused if there are reasonable grounds as aforesaid, under Rule 210 bail cannot be granted unless the Court is satisfied that there are reasonable grounds for believing in the innocence of the accused. The difference is not merely one of emphasis it lies in this that in cases of some doubt under Rule 210 at least the decision would have to go against the accused person.
Now cases of this kind which on the one hand insist upon the Court's satisfaction in this degree before bail can be granted, and on the other hand depend upon a single piece of evidence, which is precisely available to the High Court, at this early stage, present an unusual difficulty. Ordinarily, although the merits of the case are involved at least to a prima facie extent, in that, the Court has to make up its mind whether there are such reasonable grounds as are contemplated by section 497 the Court would use guarded language and referring from too strong an expression of opinion in order that the trial of the accused be not prejudiced. In any event dealing as it normally would do with evidence which has yet to come on the record, its finding would of necessity be of a tentative character and therefore, unlikely to cause such prejudice even if Court has not used careful language."
3. It would thus follow that despite the bar contained in rule 210 in regard to grant of bail this Court could not be said to be preciuded from exercise of the right to grant bail in cases which may have been registered under rule 42 and 49. I am myself clear in my mind that if the allegations against the accused person cast be fairly considered to fall within the scope of rule 42 there would he as exclusion of power to grant bail and if on the other hand on a consideration of the allegation broadly it may appear that there was a reasonable likelihood of the case not falling under rule 42, the powers of this Court -to grant bail are not curtailed. The only limitation is that the observations that I make now are of a purely tentative nature and there is a possibility of the trial Court coming to a contrary conclusion after the evidence is recorded. Keeping this principle in view I proceed to consider the bail application fixed before me.
4. Briefly stated the facts are that S. H. O. Tangwani Police Station went out in search of some proclaimed offenders. He came to know that the said offenders were in the house of the applicant and he therefore, proceeded to the house of the applicant. While he was still making enquiries one Bahram Malik came up to the Police Officer and made a statement to the effect that the petitioner was spreading rumour against the present Government and stated that the present Government is of infidels and power loving people, that the constitution was un-Islamic and Land Reform Scheme was a show. It was also stated that the petitioner used to excite people to have the province of Sind separated like Bangla-Desh. In fact the words in that context were "Sind Province wanted independence and would get it freed like Bangladesh."
5. On a perusal of the allegations as contained in the first information report I am of the view that Rule 42 would be attracted to this case. However, this is just a tentative view and it shall be open to the trial Court to come to its independent conclusion after hearing the evidence. I reject this bail application.